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Responsibility for Debts in Marriage

Tuesday 06 December 2016

A married couple may well have signed up to 'for better or worse', but in French law that principle has its limits when it comes to responsibility for debts.

That a married couple are jointly responsible for the debts incurred in their marriage is a central principle of most Western legal systems.

It is one that applies even though the debts may not be in joint names, although certain debts cannot be attributed to the other spouse.

According to Article 220 of the French Civil Code, each married spouse or civil partner has the power to enter into contracts in their own name, provided the contract is for either maintenance of the household or the education of their children.

Both spouses are responsible jointly and severally for any debts arising from such contracts.

Thus, contracts for utilities, food, health, telecoms, household furniture and equipment are jointly held, as are all contracts related to the schooling of the children.

Joint liability also arises for rental payments, loans taken out to improve the property, and social security obligations relating to health and pension contributions.

The couple are also jointly responsible and liable for all taxes that are due, whether income tax or rates in connection with the property or household. The tax authority can bring an action against either spouse for recovery of any unpaid taxes.

Limitations

Nevertheless, the Civil Code expressly excludes from joint responsibility certain debts incurred in a sole name, stating:

"La solidarité n'a pas lieu, néanmoins, pour des dépenses manifestement excessives, eu égard au train de vie du ménage, à l'utilité ou à l'inutilité de l'opération, à la bonne ou mauvaise foi du tiers contractant.

Elle n'a pas lieu non plus, s'ils n'ont été conclus du consentement des deux époux, pour les achats à tempérament ni pour les emprunts à moins que ces derniers ne portent sur des sommes modestes nécessaires aux besoins de la vie courante et que le montant cumulé de ces sommes, en cas de pluralité d'emprunts, ne soit pas manifestement excessif eu égard au train de vie du ménage."


Broadly speaking, what all of that means is that excluded from joint responsibility is expenditure that is ‘manifestly excessive’ given the lifestyle of the household. Similarly excluded are loans and hire-purchase agreements not taken out for the purposes of household maintenance that have not been agreed and signed jointly by the spouses.

Just what might be considered to be excessive expenditure is not spelt out in statute law, but a host of cases in the courts over the years have given some meaning to it.

Thus, a luxury car and an expensive flat-screen television set have been judged to be excessive expenditure for a family on a modest income.

Similarly, two loans taken out by a husband for the purchase of a classic collector's car were considered to be excluded from joint responsibility.

Also excluded was a loan taken out by a husband for the purchase of an investment property, as was a loan taken out by a husband for a luxury personal holiday.

This principle applies irrespective of the marriage regime, as was confirmed in a recent ruling of the French Supreme Court in considering the case of a couple who had been married under the régime de la communauté universelle.

This marriage contract is one frequently used by expatriate residents in France to get around enforced succession laws on the death of the first spouse.

In the case, following the death of one of the spouses, the bank sought to recover from the surviving spouse an overdraft incurred by her deceased husband of over €100,000. She had not been a signatory to the overdraft agreement.

Although some of the funds had been used for living expenses, the court ruled that a loan signed by one of the spouses, without the express consent of the other, only made them jointly liable where the sum involved was modest and related to funds used for normal living expenses.

Given the potential scope of exclusions it is not surprising that most banks and credit companies require that loan agreements are entered into on a joint basis between partners!

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